Media & Communications Policy

Media & Communications Policy

Issues & Developments in the Realm of Communications and Media Policy & the First Amendment

What Changed the FCC Chairman’s Mind?

Posted in Broadband, Cable TV, Digital technology, FCC, Media Regulation, Network Neutrality, Uncategorized

On the occasion last week of the Federal Communications Commission (FCC)’s passage of “net neutrality” regulations, Tom Wheeler, chairman of the Commission, announced that it was “the proudest day of my public policy life.”  It’s not known whether that statement is a reflection of how little Wheeler feels he’s accomplished in life, or an embarrassing attempt to take credit for something that was forced on him.

What we do know is that the regulation that passed with his vote – and those of the other two Democrats on the Commission – was not the much sounder one Wheeler initially proposed, but a radical version that carries within it opportunities for mischief and much worse than that.

So what happened to change Wheeler’s mind?  The most obvious explanation is the interjection of President Obama who, a few weeks before the vote, publicly stated his view that the FCC should subject Internet service providers (ISPs) to utility-like regulation.  This is the explanation for Wheeler’s switch held by most insiders, and there’s no doubt that these FCC commissioners, their notional “independence” notwithstanding, move like earlier ones to the music of their parties and the presidents who appoint them. >> Read More

Who’s Behind the Push for Net Neutrality?

Posted in Digital technology, FCC, Media Regulation, Network Neutrality, Uncategorized

If “net neutrality” were a life form, it would be classified as a simple organism.  And that lack of complexity, as it happens, is its very appeal to certain “progressives,” garden-variety regulators, and large Internet companies, who see in government regulation of the Internet opportunities to cement and extend their franchises.

The brave and gifted Federal Communications Commission (FCC) Commissioner Ajit Pai, and former commissioner Robert McDowell, are doing all they can to point out the many already identifiable problems, as well as potential pitfalls, that line the path of this regulatory nightmare.  Among those problems are higher user fees to consumers, a slowdown in the rate of investment in broadband infrastructure, regulatory creep, and the wrong kind of example to set before foreign dictators and tyrants.

Alas, none of this is likely to deter the three Democratic FCC commissioners, as instructed by the White House, from passing this regulation.

What has not been much discussed in all of this is the role in the promotion of net neutrality played by some of the actors: activist groups like Free Press, Public Knowledge, and Media Matters; huge grant-giving foundations like the Ford, Soros, and Knight foundations; and companies like Google.   >>Read More

‘Forbearing’ the Constitution: Net Neutrality and the FCC

Posted in Broadband, First Amendment, Media Regulation, Network Neutrality, Uncategorized

So the latest word is that the Federal Communications Commission (FCC), a branch of government that, amusingly, is still referred to as an “independent” agency, is about to enact so-called net neutrality regulations under Title II of the Communications Act.

This, because according to its fans at the Commission, such regulations are needed in order to ensure a “fair and open” Internet.  Because, however, even the most passionate among them understand the many problems this would otherwise cause, the majority Democratic commissioners are said to be poised to enact regulations that forbear the full imposition of Title ll rules.

Meantime, Congress is considering enacting a law that would itself aim to protect net neutrality, but would do so in such a way as to deprive the FCC of its ability to regulate Internet service providers as a utility under Title II.

If (you’ll forgive the expression) one googles the word “forbearance,” the first definition that comes up reads: “The action of refraining from exercising a legal right…. ” — and there’s the rub!

With every passing day it becomes clearer that the Internet is the future of the press, and the plain language of the First Amendment bars the government from abridging freedom of speech or of the press.  >>Read More

We Are Not Charlie. We Are Weak.

Posted in First Amendment, Free speech, Journalism, Media criticism, Publishing, Uncategorized

The worst aspect of the Charlie Hebdo affair is that human beings were murdered for practicing free speech.  A distant second is the way this affair, and the earlier hacking of the Sony Pictures studio, has exposed the pieties and inadequacies of so much of the media.

Speaking the other day at the Consumer Electronics Show, Kazuo Hirai, CEO of Sony Corp., is reported to have said that he was proud “of all of the employees of Sony Pictures for standing up against the extortionist efforts of those criminals that attacked” the company.

Really?  No acknowledgment that the studio belatedly moved to release the film only after being criticized by virtually everyone in the country up to and including the president?

And despite the happy profusion of “Je Suis Charlie” displays, what has been the response of American media companies to that monstrous act?  As reported in Politico on Jan. 7, CNN senior editorial director, Richard Griffiths, sent a message to CNN staff saying, among other things, that “Video or stills of street protests showing Parisians holding up copies of the offensive cartoons, if shot wide, are OK.  Avoid close-ups of the cartoons that make them clearly legible.”

And here, according to a piece in Rolling Stone, is the way the Associated Press described its decision regarding the Hebdo cartoons: “We’ve taken the view that we don’t want to publish hate speech or spectacles that offend, provoke or intimidate, or anything that desecrates religious symbols or angers people along religious or ethnic lines. …  We don’t feel that’s useful.”

Even the Hollywood bible, Variety magazine, adds to the general alarm:

A brutal attack on French satirical magazine Charlie Hebdo over cartoons depicting the prophet Mohammed has jolted Hollywood, escalating concerns by artists and producers that major studios and networks may avoid greenlighting movies and TV shows with potentially inflammatory content….

Freedom of speech is under attack, but, given Sony’s initial decision to pull the release of The Interview and its subsequent about-face, it’s not clear how rousing a defense the entertainment business is willing to mount in the midst of financial pressures, political dangers, and the threat of violence.

Making matters incalculably worse is the fact that the most immediate threats to free speech in this country don’t come from abroad, but from here at home.  As described three years ago by Jonathan Turley in the Washington Post, we are witnessing the censoring of speech under one of four rationales: Speech is blasphemous; Speech is hateful; Speech is discriminatory; Speech is deceitful.

Shortly after the Sony affair broke open, Ross Douthat, the loneliest and bravest journalist at the New York Times, wrote one of the most powerful paragraphs about that, and related, matters:

Of course it had to escalate this way.  We live in a time of consistent gutlessness on the part of institutions notionally committed to free speech and intellectual diversity, a time of canceled commencement invitations and CEOs defenestrated for their political donations, a time of Twitter mobs, trigger warnings and cringing public apologies.  A time when journalists and publishers tiptoe around Islamic fundamentalism, when free speech is under increasing pressure on both sides of the Atlantic, when a hypersensitive political correctness has the whip hand on many college campuses.

So why should anyone be remotely surprised when Kim Jong-un decided to get in on the “don’t offend me” act?

So what to do?  Enforcement of the First Amendment won’t suffice because it only proscribes governmental abridgement of free speech, and only, of course, in the United States.

Here are a couple suggestions.  The next time you read or hear something that you think is truly awful, moronic, hateful, or false, send a comment by email, text, or social media stating your objections but also saying that you respect the right of the offending party to speak his or her piece.

And when you hear of some group or individual threatening advertisers with boycotts for advertising on programs they don’t like, contact those same advertisers yourself and let them know that you have a different view.

In the end, free speech can be guaranteed, if at all, not by the press or government, but only by the people.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  This article was originally published here in the online edition of USA Today on Jan. 15, 2015.

Rolling Stone and Journalism by Meme

Posted in Journalism, Media criticism, Uncategorized

It’s getting hard to keep track of it all.  From the over-the-top coverage by CNN of the Ferguson, Mo., affair, to Rolling Stone’s imploding UVA rape story, to the likely demise of The New Republic, it’s the media themselves who have lately been the story.

And not a good one.  Recalling the recent CNN panel that raised their hands in “solidarity” with the Ferguson protesters, Paul Bedard of the Washington Examiner awarded CNN four out of five “screams” for endorsing this discredited narrative.

Meanwhile, the Rolling Stone story, about which the magazine says it is in the process of “re-reporting,” has been denounced by just about everyone, including Lizzie Crocker at The Daily Beast, who wrote a piece under the headline “What the U-VA Rape Case Tells Us About a Victim Culture Gone Mad,” and Jeff Jacoby of the Boston Globe, who wryly observed that the “journalistic priesthood holds to a different standard, one that elevates the higher truth of an overarching ‘narrative’ … above the mundane details of fact.”  >> Read More

The Gruber Videos and the Future of Journalism

Posted in Journalism, Media criticism, Uncategorized

Very few people (outside of those who wish them ill) have commented on the lack of substantial, and politically even-handed, reporting by the mainstream media (MSM).

Most of the White House press corps has been reduced, during the Obama years, to a gaggle of superficial chroniclers of whatever spin the White House puts on policy issues and national affairs generally.  Nor is the conduct of the White House press corps the only evidence of the journalistic failings of the mainstream media.

The Jonathan Gruber videos, in which his nibs brags of his cleverness in deceiving the public and Congress about crucial aspects of the Affordable Care Act, provide another example.  Some of the Gruber videos date back to 2010, so why are they only now coming to light?

More importantly by far, why didn’t the press fully examine and expose what we now know to be the many adverse effects of the ACA before its passage?  It isn’t as though no one had seen them coming.  Indeed, many GOP legislators, and conservative think tank experts, warned of precisely such effects.  So why weren’t those warnings fully vetted by the press?  >> Read More

FCC’s Net Neutrality Plan Is Another Step in the Regulation of Speech

Posted in Digital technology, Network Neutrality, Uncategorized

So the latest development on the speech regulation front is Federal Communications Commission (FCC) Chairman Tom Wheeler’s rumored plan to create a “hybrid” regulatory structure in the name of “net neutrality,” the condition which, as it happens, has already been attained.

Under Wheeler’s plan, Internet regulation would be split between a highly regulated back end, where content providers deal with Internet service providers (ISPs), and a more lightly regulated front end, where consumers get their content from ISPs.  This, so it’s said, is a way to get around the decision of a federal appeals court that invalidated an earlier FCC attempt to institute net neutrality regulations.

So it is that net neutrality has gone from what Bob Kahn, the inventor of the Transmission Control Protocol, has called a “slogan,” to what Scott Cleland derides as an industrial policy benefiting Silicon Valley at the expense of consumers.

Those who have a sense of history, and a wider angle of vision on the policy process, may be struck by something else.  The FCC’s plan, coming at the very time that the Federal Election Commission is looking for ways to regulate political speech on the Internet, the Justice Department is spying on journalists, and the National Security Agency (NSA) is intercepting citizens’ phone calls and e-mail, would add yet another way in which government could insert itself into the speech business.  >> Read More

Free Speech Week: Not a Moment Too Soon

Posted in Campus Speech, First Amendment, Free speech

With two and a half months still to go, 2014 has been one of the toughest years on record for freedom of speech in the USA.

In February, for instance, two “climate change” groups collected 110,000 names on a petition they then sent to the Washington Post.  The petition demanded that the Post stop publishing “editorial content denying climate change.”  In a press release issued by one of the groups, columnists George Will, Charles Krauthammer, and the Volokh Conspiracy blog were singled out by name as “climate change deniers.” Happily, the petition went nowhere, though the Los Angeles Times has adopted an editorial stance similar to what the petitioners demanded of the Post.

In March, Kickstarter, the crowd-funding site, demanded that the producers of an anti-abortion film about convicted abortionist Kermit Gosnell remove from their proposal vivid language about the way Gosnell went about his work. Kickstarter said the language in the proposal went against its “Community Guidelines.”  One day after the producers refused, and loudly took their proposal to another crowd-funding site, Kickstarter said it would allow the proposal, and later said it was amending its guidelines.  Too late.  To date the film has raised over $2 million on the competing crowd-funding site, Indiegogo.

April was an especially busy month for the nation’s speech police.  On April 3, Brendan Eich resigned his position as CEO of Mozilla Corporation.  Eich had been roundly attacked on social media, and by LGBT activists, for a contribution he made six years earlier to California Proposition 8, which sought to establish that only a marriage between a man and a woman could be recognized as valid in that state.

Five days later, on April 8, Brandeis University reversed its decision to award an honorary degree to women’s rights activist Ayaan Hirsi Ali, following heated criticism of the award to her by the Council on American-Islamic Relations and the Arab American Institute.  As a young Muslim woman, Hirsi Ali endured genital cutting and later wrote the screenplay for the film “Submission,” which was critical of the way Muslim women are treated. Defending the decision, the president of Brandeis said that Hirsi Ali was free to come to the campus “to engage in dialogue” but that there is a difference between having a provocative speaker on campus and awarding an honorary degree.

Things proceeded apace in May, with Condoleezza Rice and Christine Lagarde being targets of opportunity for local censors.  The former secretary of state withdrew from a commencement address at Rutgers after student and faculty protesters criticized her role in the Iraq war.  (We can only wonder if, a few years from now, the same students and faculty will protest campus addresses by members of the Obama Administration for their role in the bombing of ISIS.)

And Lagarde, the managing director of the International Monetary Fund, withdrew as commencement speaker at Smith College following the appearance of an online petition objecting to her role, at the IMF, in strengthening “imperialist and patriarchal systems.”

The media’s own PC patrols were out in June, as the struggling St. Louis Post-Dispatch used its mischaracterization of a George Will column as an excuse to drop the columnist altogether.  Will had argued, in a piece titled “Colleges become the victims of progressivism,” that colleges were opening themselves up to litigation in cases where allegations of sexual assault deny due process to those accused.  The paper’s editorial page editor, no friend of conservatives, averred that Will’s column caused hurt among people in the social media and some female friends of his … or that Will was past his prime, take your pick.

The months of July and August were relatively free of such fireworks, presumably because the PC too need a vacation, but the current month has already been marked by more of the same.  On Oct. 6, for instance, Scripps College, a women’s liberal arts institution and one of the five undergraduate colleges that comprise Claremont Colleges, disinvited George Will from delivering an address as part of a program that was designed to bring prominent conservatives to the Scripps campus.

Will’s offense?  The same column he wrote last summer about sexual assault on campus.  In the inscrutable words of the Scripps president: “Sexual assault is not a conservative or liberal issue.  And it is too important to be trivialized in a political debate or wrapped into a celebrity controversy.”  One assumes, on reading such stuff, that the Scripps president was engaging in some kind of liberal arts equivalent of speaking in tongues.

Interestingly, the Scripps president doesn’t appear to honor the distinction made by the Brandeis president – that there’s a difference between allowing someone to speak on the one hand, and giving that person an award on the other – but who’s to question disagreements between such giants?

Ensuring that October will not go out like a lamb, no matter what happens from now until the end of the month, comes the latest brouhaha, an attempt by the City of Houston to subpoena sermons delivered in five area churches by pastors who oppose passage by the Houston City Council of the Houston Equal Rights Ordinance (HERO).

After the city disqualified a petition by opponents to put HERO to a referendum, some of the petition organizers filed a suit against the city; in response Houston and its pro bono attorneys subpoenaed the sermons and other information from the five churches, though none of the five was among the groups suing the city.

It is (or was) the city’s position that the subpoenas are a legitimate tactic in the discovery process, but since the mayor and the city attorney have now reversed themselves and say that they think the subpoenas are overbroad, it’s not at all clear where this matter will end, most likely in the withdrawal or quashing of the subpoenas.

October 20 begins the start of the annual celebration called Free Speech Week.  As demonstrated by events to date this year, one hopes it will grow and gain traction.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

‘Freedom From Speech’

Posted in First Amendment, Free speech, Journalism

Evidence that the human race is not yet won, as a former colleague used to say, is coming in the windows.  From murder in the name of religion, to widespread crime, greed, and violence, to the bottoming of popular culture, it’s pretty clear that this is not mankind’s finest hour.  But enough about mankind, generally speaking.

The subject of today’s tutorial is that little slice of homo erectus living in the USA, and practicing the politics of proto-fascism.  And who are such people, you wonder?  Well, they’re to be found among  activists, journalists, college professors; wherever, in other words, “progressives” congregate in especially large numbers.

It is these worthies who have foisted upon us the deeply undemocratic and freedom-busting protocols of political correctness.  Think about it: We have now arrived as a nation at a time when people who say anything that gives (or could give) offense to any minority – with the exception of white, Christian, heterosexual and Republican men, about whom no amount of criticism or ridicule is sufficient – may find themselves expelled or unemployed, if not under arrest, the constitutional guarantee of free speech notwithstanding.

It is a time when certain taxpayer-funded colleges and universities allow free speech on campus only within designated “free speech zones,” and sometimes not even there.  A time when textbooks must come with “trigger warnings,” lest a reader feel threatened or uncomfortable with the contents therein.

It’s a time when colleges are routinely the site of “disinvitation” campaigns aimed at preventing speakers from appearing on campuses, and when colleges formulate so-called campus speech codes.

It’s because of his concern with this cultural void that Greg Lukianoff, head of the Foundation for Individual Rights in Education (FIRE), has written a new book titled Freedom from Speech.  Published just recently by Encounter Books, this slim volume is must reading for anyone who senses that things are going badly wrong on campuses and beyond, and wants to know what to do about it.

What Lukianoff is doing, in addition to writing books, is challenging colleges with litigation, aided by Bob Corn-Revere, the terrific First Amendment lawyer at Davis Wright Tremaine.  (It should be noted, in the interest of full disclosure and a measure of chest-thumping, that both Lukianoff and Corn-Revere are members of The Media Institute’s First Amendment Advisory Council.)

A justly flattering review of Lukianoff’s book, written by Ronald Collins in Concurring Opinions, provides this telling quote: “This is a surreal time for freedom of speech.  While the legal protections of the First Amendment remain strong, the culture is obsessed with punishing individuals for allegedly offensive speech utterances.”

And it’s this dichotomy: strong legal protections, undermined by weak and/or contradictory applications of the law in the culture generally, that goes to the heart of the problem, and its seeming intractability.

If this situation is to improve, two things need to come to pass: First, some of the colleges being challenged with lawsuits need to defend their positions in court (rather than just buckling under at the threat of litigation) and then lose decisively and painfully; and second, there needs to be some measure of genuine opprobrium attached to the practices, on campuses and everywhere else, of the speech police.

In the meantime, there are a few things people troubled by all this can do.  They can (1) buy Lukianoff’s book; (2) make a tax-deductible contribution to FIRE; and (3) contact Bob Corn-Revere whenever you think you’ve spotted an actionable offense in this area.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.

ProPublica and the Problem With Journalism

Posted in Media criticism, Uncategorized

It’s symptomatic of the syndrome: So many people who presume to speak for and about journalism’s shortcomings misdiagnose both the problem and its solutions.  So it is that individuals of a certain mindset promote the idea that “corporate influence” is a problem, and nonprofit media are an answer.

One of the most prominent purveyors of the wrong stuff is the Pulitzer Prize-winning ProPublica, the nonprofit “newsroom” that produces investigative journalism “in the public interest.”

ProPublica has received funding from such birds of a feather as George Soros and the Knight Foundation, but most has come from its founding chairman, Herbert Sandler, a man with a well-established history of giving to left-wing organizations like ACORN.

Sandler has also been the subject of withering, and occasionally comic, criticism for his role as the former head of Great West Financial.  In 2009, Time magazine named him and his wife to its list of the “25 people most responsible for the financial crisis,” and “SNL” did a skit in ’08 in which it was suggested he should be shot.

ProPublica says it focuses on stories with “moral force,” by “shining a light on the exploitation of the weak by the strong.”  With these as their mission statement, funders, and modus operandi, it will come as a shock to no one that ProPublica’s light rarely shines on issues as would discomfit liberals and progressives, even as they also publish stories that are down the middle.

Nowhere to be found this year, for instance, are investigative stories focusing of the future effects of the kind of deficit spending currently being done by states, localities, and the federal government.  No investigations of public employee unions and the role they play in stimulating those deficits.  No investigations of the outsized impact on healthcare costs caused by ambulance chasing trial lawyers.  No investigations of the derelictions and inadequacies of public school educators and administrators.

No investigations of the failure and counterproductive aspects of the many taxpayer-funded “poverty programs.”  No investigations of the obvious fraud in the exploding number of people claiming disability benefits.  No investigations of the willful misuse of claims of racial bias made by politicians and government officials.  No investigations of the compelling legal arguments, based on the First Amendment, behind decisions like Citizens United.

Instead, the kind of stuff pumped out by ProPublica, to name just a few of its current investigations, are stories in ongoing series such as:

  • Patient Safety: Exploring Quality of Care in the U.S.  More than 1 million patients suffer harm each year while being treated in the U.S. health care system.  Even more receive substandard care or costly overtreatment….
  • Fracking: Gas Drilling’s Environmental Threat.  Vast deposits of natural gas have brought a drilling boom across much of the country, but the technique being used, called hydraulic fracturing, is suspected of causing hundreds of cases of water contamination….
  • Buying Your Vote: Dark Money and Big Data.  A series of court rulings led to the creation of super PACs and an influx of “dark money” into politics, fundamentally changing how elections work….
  • Segregation Now: Investigating America’s Racial Divide.  Investigating America’s racial divide in education, housing, and beyond….
  • Restraints.  How public school kids are being pinned down and held their (sic) against their will….

In addition to its transparent ideological affinities, ProPublica has also been implicated in the IRS scandal.  Though it attracted very little media attention, in November 2012 the IRS improperly gave (or someone leaked to) ProPublica the tax-exempt application forms of nine conservative groups, including Karl Rove’s Crossroads GPS, that had not yet been given tax-exempt status.

Shortly thereafter, ProPublica published six of those applications, with their financial information redacted.  And when, on May 10, 2013, Lois Lerner lit the fuse on a fire within the IRS that is burning still, ProPublica quickly published a story (and a week later a podcast) exonerating itself of any blame, and retelling why the organization published these applications.  (There was, according to ProPublica’s president, “a strong First Amendment interest.”)

Though ProPublica had asked for the applications by name, it did so, it says, without knowing that the groups had not been granted exemptions, and it claims not to know why the applications were sent when they should not have been.

That claim notwithstanding, anyone keeping track of their “Dark Money” series, which began many months before the IRS imbroglio, knows that ProPublica is a big fan of what is called “campaign finance reform,” suggesting the possibility that the IRS sent the applications in the hope that, were they published, this would further the agency’s crackdown on conservative tax-exempt organizations.  We simply don’t know, and may never know unless an independent prosecutor can one day get IRS officials to testify under oath.

Given, however, what is known about ProPublica’s mission and funders, one might assume that the mainstream media would be chary of working with it.  Far from it.  In fact, ProPublica’s list of partnering media reads like a who’s who of the mainstream media: the Washington Post, New York Times, Associated Press, and many, many more.

And it’s this, not the fact that ProPublica exists and does what it does, that is the most disturbing part of the ProPublica phenomenon.

The greatest problem with mainstream journalism isn’t the editorial influence of advertisers, or even the advent of the Internet, which is more of a business challenge.  As shown in polls, the greatest journalistic problem is the way in which the mainstream media, all of which profess objectivity in their news reports and feature stories, have tarnished the reputation of contemporary journalism as a check on government and as an impartial chronicler of the nation’s most important issues.

The opinions expressed above are those of the writer and not of The Media Institute, its Board, contributors, or advisory councils.  A version of this article first appeared in The Daily Caller on July 31, 2014.